Citation Nr: 0817443
Decision Date: 05/28/08 Archive Date: 06/09/08
DOCKET NO. 06-10 604 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1.Entitlement to a rating higher than 10 percent for service-
connected bilateral hearing loss before October 31, 1995, and
a rating higher than 40 percent before January 10, 2003, a
rating higher than 70 percent from January 10, 2003.
2. Whether there was clear and unmistakable error in the
rating decision of March 2003 by the RO, assigning an
effective date of January 10, 2003, for a 70 percent rating
for service-connected bilateral hearing loss.
3. Whether there was clear and unmistakable error in the
rating decision of June 2003 by the RO, assigning an
effective date of January 10, 2003, for a total disability
rating for compensation based on individual unemployability.
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The veteran, who is the appellant, served on active duty from
September 1963 to February 1973.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a rating decision in September 2005 of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas.
A decision is deferred on the claims of clear and
unmistakable error until the pending appeal of a rating
decision in August 1979 by the RO is finally adjudicated. To
ensure procedural due process, the pending appeal of the
claim for increase for service-connected bilateral hearing
loss is REMANDED to the RO via the Appeals Management Center
in Washington, DC.
REMAND
The record shows that in August 1979 the veteran filed a
claim for increase for bilateral hearing loss. In a rating
decision in August 1979, the RO denied the claim. In
September 1979, the veteran filed a notice of disagreement,
and after the RO issued a statement of the case in September
1979, the veteran perfected the appeal by timely filing a
substantive appeal in October 1979. Thereafter the RO
received additional evidence, and in a rating decision in
January 1980, increased the rating for bilateral hearing loss
to 10 percent, effective from September 10, 1979.
Even if a rating is increased during the pendency of an
appeal, a veteran is presumed to be seeking the highest
possible rating, unless he expressly indicates otherwise,
which the veteran had not. AB v. Brown, 6 Vet. App. 35, 39
(1993).
In October 1995, the veteran filed a claim for increase for
bilateral hearing loss. In a rating decision in June 1996,
the RO increased the rating for bilateral hearing loss to 40
percent, effective from October 31, 1995.
In January 2003, the veteran filed a claim for increase for
bilateral hearing loss. In a rating decision in March 2003,
the RO increased the rating for bilateral hearing loss to 70
percent, effective January 10, 2003.
Once an appeal is perfected, the appeal remains pending
unless the benefit sought has been granted or the appeal is
withdrawn by the appellant or until the appeal is decided by
the Board. As none of the grounds for terminating the appeal
of the rating decision in August 1979 apply, the appeal
remains pending.
To ensure procedural due process, the appeal of the claim for
increase for bilateral hearing loss is REMANDED for the
following action:
1. On the claim for increase for
bilateral hearing loss, ensure VCAA
compliance to include notice of the
requirements of Dingess v. Nicholson,
19 Vet. App. 473 (2006) and Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008).
2. Furnish the veteran a supplemental
state of the case on the claim for
increase for bilateral hearing loss
higher than 10 percent before October 31,
1995, higher than 40 percent before
January 10, 2003, a higher than 70
percent from January 10, 2003. The
supplemental statement of the case should
inform the veteran of the additional
evidence considered and of any changes in
the law since the statement of the case
was issued in September 1979. Thereafter
the case should be returned to the Board.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the United States Court of Appeals for
Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of the veteran's appeal. 38 C.F.R.
§ 20.1100(b) (2007).
Department of Veterans Affairs